CASE NO.: Appeal (crl.) 44
of 2005
PETITIONER: Jayendra Saraswathi
Swamigal
RESPONDENT: State of Tamil Nadu
DATE OF JUDGMENT: 10/01/2005
BENCH: CJI R. C. Lahoti, G. P. Mathur
& P.P. Naolekar
JUDGMENT: J U D G M E N T
(Arising out of SLP(Crl.) No. 6192
OF 2004)
G.P. MATHUR, J.
1. Leave granted.
2. This appeal,
by special leave, has been preferred against the order dated 8.12.2004
of Madras High Court, by which the petition for bail filed by the petitioner
under Section 439 Cr.P.C. was rejected.
3 An F.I.R
was lodged at 7.00 p.m. on 3.9.2004 at Police Station B-2, Vishnu Kanchi
by Shri N. S. Ganesan. It was stated therein that at about 5.45 p.m. on
3.9.2004 while he was in the office of Devarajaswamy Devasthanam, two persons
armed with aruval came there and caused multiple injuries to Sanakararaman,
In-charge Administrative Manager, who was sitting on a chair. Three
persons were waiting outside and the assailants escaped on their motor
cycles. After the case was registered, necessary investigation followed
and several persons have been arrested. According to the case of the prosecution,
the actual assault upon the deceased was made by A-6 and A-7, while four
persons, namely, A-5, A-8, A-9 and A-10 were standing outside.
4. The petitioner,
Shri Jayendra Saraswathi Swamigal, who is the Shankaracharya of Kanchi
Mutt, Kanchipuram, was arrested on 11.11.2004 from Mehboob Nagar in Andhra
Pradesh. He moved a bail petition before the High Court of Madras, which
was rejected on 20.11.2004 and the second bail petition was also rejected
by the impugned order dated 8.12.2004.
5. According to
the case of the prosecution, the petitioner had entered into a conspiracy
with some other co-accused for getting Sankararaman murdered. The motive
for the commission of the crime is said to be various complaints alleged
to have been made by the deceased levelling serious allegations, both against
the personal character of the petitioner and also his style of functioning
as Shankaracharya of the Mutt. In the reply statement filed on behalf of
State of Tamil Nadu, it is averred that the deceased had filed a complaint
before the Commissioner HR&CE not to allow the petitioner to visit
China. He filed a writ petition in the Madras High Court claiming the same
relief which was later on dismissed as a statement was made by the petitioner
that he had no intention of going to the said country. The deceased sent
several letters alleging that the petitioner was selling properties of
the Mutt; was indulging in corruption and misappropriation of funds. He
also made complaint before Special Commissioner, HR&CE that the petitioner
was not observing the rules of Sanyasa Asrama Dharma; was leading a luxurious
life enjoying mundane comforts; not performing the Pooja and promoting
commercial ventures. It is also the case of the prosecution that the deceased
sent a letter under the name of Somasekara Ganapadigal alleging that the
petitioner was indulging in immoral activities and was having relationship
with women and finally a letter was sent by him on 30.8.2004 to the petitioner
as "last warning" wherein it was said that when the petitioner went to
Thalakeverj, Kaveri river dried; when he went to the only Hindu Kingdom
of Nepal, the entire royal family was wiped out; and when he went to Kumbakonam,
there was a fire tragedy and many innocent lives were lost. Shri K.T.S.
Tulsi, learned senior counsel for the State, has submitted that after receipt
of this letter dated 30.8.2004 described as "last warning", the petitioner
called accused A-2, A-3 and A-4 and a conspiracy was hatched for eliminating
the deceased.
6. In order to
establish the aforesaid motive for commission of crime, the prosecution
relies upon copies of 39 letters which were allegedly recovered from the
house of the deceased himself. What the prosecution claims is that the
deceased used to keep copies of all the letters and complaints which he
made against the petitioner and it is these copies which have been recovered
from the house of the deceased. The prosecution claims that of these 39
letters or complaints 5 complaints were found in the office of HR&CE,
Chennai which relate to the period 14.8.2001 to 23.1.2002, one in the residence
of A-4 and 2 in the residence of the petitioner. In our opinion, the recovery
of these letters from the house of the deceased himself is not a proof
of the fact that they were actually received by the petitioner or were
brought to his notice. The deceased was not an employee of the Mutt but
was working as In-charge Administrative Manager of another Dharamsthanam
which has nothing to do with Kanchi Mutt and at least since 1998 he had
no connection with the said Mutt. Though according to the case of the prosecution,
the deceased had started making complaints against the petitioner since
August 2001, there is absolutely no evidence collected in investigation
that the petitioner made any kind of protest or took any kind of action
against the deceased. Even otherwise, many letters or complaints etc. are
addressed to people holding high office or position and it is not necessary
that they read every such letter or complaint or take them seriously. There
is absolutely no evidence or material collected so far in investigation
which may indicate that the petitioner had ever shown any resentment against
the deceased for having made allegations against either his personal character
or the discharge of his duties as Shankaracharya of the Mutt. The petitioner
having kept absolutely quiet for over three years, it does not appeal to
reason that he suddenly decided to have Sankararaman murdered and entered
into a conspiracy for the said purpose.
7. Shri F.S. Nariman,
learned senior counsel for the petitioner, has submitted that the specific
case of the prosecution at the time of the hearing of the first bail application
before the High Court was that a huge sum of money amounting to Rs.50 lakhs
was withdrawn from an account of the Mutt maintained in ICICI Bank, Kanchipuram
for being paid to the hirelings. The same stand was taken by the prosecution
when the second bail application was heard by the High Court. In the two
orders passed by the High Court by which the bail petitions were rejected,
the plea of the State that the money was withdrawn from the account of
the Mutt in ICICI Bank, Kanchipuram for payment to the hirelings is clearly
mentioned. When the special leave petition was heard for admission on 17.12.2004,
a detailed order was passed by this Court, wherein the State was directed
to give particulars of the bank account wherefrom money is alleged to have
been withdrawn by the petitioner for payment to the assailants and also
to produce the copy of the account and the passbook, if any, seized by
the investigating agency. However, in the statement in reply which has
been filed in this Court by the State on 6.1.2005, a different stand is
taken that an agreement had been entered into for sale of 50 acres of land
belonging to Kanchi Janakalyan Trust to Bhargava Federation Pvt. Ltd. for
Rs.5 crores, wherein an advance of Rs.50 lakhs in cash was received on
30.4.2004 and an endorsement regarding receipt of the said amount was made
on the reverse side of the first page of the agreement. It
was this money which was retained in cash by the petitioner all along from
which payment was made to the hirelings after the conspiracy was hatched
soon after the receipt of the alleged letter dated 30.8.2004 sent by the
deceased which was described as "last warning". No documents of the account
in ICICI bank have been produced in support of the plea which was twice
taken by the prosecution before the High Court while opposing the prayer
for bail made by the petitioner.
8. N. Sundaresan
(A-23) who is Manager of the Mutt was arrested on 24.12.2004 and was produced
before the Judicial Magistrate, Kanchipuram at 1.45 p.m. on 25.12.2004.
He stated before the Magistrate that he had received Rs.50 lakhs in cash
on 30.4.2004 and the said amount was deposited in Indian Bank, Sankara
Mutt Branch on 7.5.2004. Learned counsel for the petitioner has placed
before the Court copies of two accounts bearing nos.124 and 125 which the
Kanchi Kamakothi Peetham Shri Sankaracharya Swam has in the Indian Bank
at No.1, Salai Street, Kanchipuram. This statement of account shows that
on 7.5.2004 an amount of Rs.28,24,225/- was deposited in cash in account
no.124 and an amount of Rs.21,85,478/- was deposited in cash in account
no.125. Thus the total amount which was deposited in cash comes to Rs.50,09,703/-.
Learned counsel has explained that in addition to Rs.50 lakhs which received
in cash an extra amount of Rs.9,703/- was deposited in order to liquidate
the overdraft over which penal interest was being charged by the bank.
The statement of account clearly shows that after deposit of the aforesaid
amount the entire overdraft was cleared. This clearly shows that the entire
amount of Rs.50 lakhs which was received in cash on 30.4.2004 was deposited
in Bank on 7.5.2004. This belies the prosecution case, which was developed
subsequently after the order had been passed by this Court on 17.12.2004
directing the State to produce copy of the ICICI Bank account, that the
cash money was retained by the Petitioner from which substantial amount
was paid to the hirelings.
9. The prosecution
also relies upon confessional statement of Kathiravan (A-4) recorded under
Section 164 Cr.P.C. on 19.11.2004, wherein he stated that he went to the
Kanchi Mutt on 1.9.2004 and in the presence of Ravi Subramaniam and Sundaresan,
the petitioner said that Sankararaman had written letters and had filed
cases and it was not possible for him to bear the torture any longer and,
therefore, he should be killed on the same day. It is important to mention
here that A-4 retracted his confession on 24.11.2004 when his statement
was again recorded under Section 164 Cr.P.C. The prosecution also relies
upon confession of Ravi Subramaniam (A-2) which was recorded on 30.12.2004
wherein he made a similar statement that the petitioner offered him Rs.50
lakhs on 1.9.2004 for getting rid of Sankararaman.
10. Shri Nariman has
submitted that in view of Section 30 of the Evidence Act confession of
a co-accused is a very weak type of evidence which can at best be taken
into consideration to lend assurance to the prosecution case. He has referred
to the decision of the Privy Council in Bhuboni Sahu v. The King AIR 1949
PC 257, wherein it was observed that confession of a co-accused is obviously
evidence of a very weak type and it does not come within the definition
of evidence contained in Section 3 as it is not required to be given on
oath, nor in the presence of the accused and it cannot be tested by cross-examination.
Learned counsel has also referred to Kashmira Singh v. State of M.P. AIR
1952 SC 159 where it was held that the confession of an accused person
is not evidence in the ordinary sense of the term as defined in Section
3 and it cannot be made the foundation of a conviction and can only be
used in support of other evidence. It was further observed that the proper
way is, first to marshall the evidence against the accused excluding the
confession altogether from consideration and see whether, if it is believed
a conviction could safely be based on it. If it is capable of belief independently
of the confession, then of course it is not necessary to call the confession
in aid. But cases may arise where the Judge is not prepared to act on the
other evidence as it stands even though, if believed, it would be sufficient
to sustain a conviction. In such an event the Judge may call in aid the
confession and use it to lend assurance to the other evidence and thus
fortify himself in believing such evidence which without the aid of the
confession he would not be prepared to rely on for basing a finding of
guilty. Reliance has also been placed upon the Constitution Bench decision
in Haricharan Kurmi v. State of Bihar AIR 1964 SC 1184, where it was held
that the Court cannot start with the confession of a co- accused person;
it must begin with other evidence adduced by the prosecution and after
it has formed its opinion with regard to the quality and effect of the
said evidence, then it is permissible to turn to the confession in order
to receive assurance to the conclusion of guilt which the judicial mind
is about to reach on the said other evidence. It was further observed that
the confession of a co-accused person cannot be treated as substantive
evidence and can be pressed into service only when the Court is inclined
to accept other evidence and feels the necessity of seeking for an assurance
in support of its conclusion deducible from the said evidence. It has thus
been urged that the confession of A-4 which was retracted by him subsequently
and also that of A-2 have very little evidentiary value in order to sustain
the charge against the petitioner.
11. Shri K.T.S. Tulsi,
learned senior counsel, has, on the other hand, placed strong reliance
on Section 10 of the Evidence Act and has submitted that this being a specific
provision dealing with a case of conspiracy to commit an offence, the principle
laid down in the authorities cited by Shri Nariman would not apply and
anything said, done or written by any one of the accused is a relevant
fact as against each of the person conspiring to commit a crime. In this
connection he has referred to State of U.P. v. Buta Singh 1979 (1) SCC
31, State of Maharashtra v. Damu 2000 (6) SCC 269, Firozuddin Basheeruddin
& Ors. V. State of Kerala 2001 (7) SCC 596, Prakash Dhawal Khairnar
v. State of Maharashtra 2002 (2) SCC 35 and State of H.P. v. Satya Dev
Sharma & Ors. 2002 (10) SCC 601.
12. The opening words
in Section 10 are "where there is reasonable ground to believe that two
or more persons have conspired together to commit an offence". If prima
facie evidence of the existence of a conspiracy is given and accepted,
the evidence of acts and statements made by anyone of the conspirators
in furtherance of the common object is admissible against all.
Therefore, there should first be a prima facie evidence that the person
was a party to the conspiracy before his acts or statements can be used
against his co-conspirators. No worthwhile prima facie evidence apart from
the alleged confessions have been brought to our notice to show that the
petitioner along with A-2 and A-4 was party to a conspiracy. The involvement
of the petitioner and A-2 and A-4 in the alleged conspiracy is sought to
be established by the confessions themselves. The correct import of Section
10 was explained by the Judicial Committee of the Privy Council in Mirza
Akbar v. King Emperor AIR 1940 PC 176 as under:
"The words of S.10 are not capable
of being widely construed so as to include a statement made by one conspirator
in the absence of the other with reference to past acts done in the actual
course of carrying out the conspiracy, after it has been completed. The
words "common intention" signify a common intention existing at the time
when the thing was said, done or written by one of them. Things said, done
or written while the conspiracy was on foot are relevant as evidence of
the common intention, once reasonable ground has been shown to believe
in its existence. But it would be a very different matter to hold
that any narrative or statement or confession made to a third party after
the common intention or conspiracy was no longer operating and had ceased
to exist is admissible against the other party. There is then no
common intention of the conspirators to which the statement can have reference."
Here, the confessions of A-2 and
A-4 were recorded long after the murder when the conspiracy had culminated
and, therefore, Section 10 of the Evidence Act cannot be pressed into service.
However, we do not feel the necessity of expressing a concluded opinion
on this question in the present case as the matter relates to grant of
bail only and the question may be examined more deeply at the appropriate
stage.
13. Shri Tulsi has also
submitted that there is also evidence of dying- declaration in order to
fasten the liability upon the petitioner and for this reliance is placed
upon the statement of S. Vaidyanathan, which was recorded under Section
164 Cr.P.C. on 28.12.2004. This witness has merely stated that he knew
deceased Sankararaman and used to talk to him and further that at 1.30
p.m. on 3.9.2004 Sankararaman contacted him over phone and told him that
his petition presented to HR&CE Department was numbered and if any
danger came to him, Jayendra alone will be responsible for the same. Since
the telephonic conversation which the Sankararaman had with this witness,
did not relate to the cause of his death or as to any of the circumstances
of the transaction which resulted in his death, the same does not come
within the purview of Section 32(1) of the Evidence Act and is not admissible
in evidence.
14. Shri Tulsi, learned
senior counsel for the respondent, has also referred to certain other pieces
of evidence which, according to him, showed the complicity of the petitioner
with the crime in question. He has submitted that the petitioner had talked
on phone to some of the co-accused. The material placed before us does
not indicate that the talk was with A-6 and A-7 who are alleged to have
assaulted the deceased or with A-5, A-8, A-9 and A-10, who are alleged
to have been standing outside. Learned counsel has also submitted that
there are two other witnesses who have heard the petitioner telling some
of the co-accused to eliminate the deceased. The names and identity of
these witnesses have not been disclosed on the ground that the interrogation
is still in progress. However, these persons are not employees of the Mutt
and are strangers. It looks highly improbable that the petitioner would
talk about the commission of murder at such a time and place where his
talks could be heard by total strangers.
15. Shri Tulsi has lastly
submitted that the prohibition contained in Section 437(1)(i) Cr.P.C. that
the class of persons mentioned therein shall not be released on bail, if
there appears to be a reasonable ground for believing that such person
is guilty of an offence punishable with death or imprisonment for life,
is also applicable to the Courts entertaining a bail petition under Section
439 Cr.P.C. In support of this submission, strong reliance has been placed
on a recent decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan
@ Pappu Yadav & Anr. 2004 (7) SCC 528. The considerations which normally
weigh with the Court in granting bail in non-bailable offences have been
explained by this Court in State v. Capt. Jagjit Singh AIR 1962 SC 253
and Gurcharan Singh v. State (Delhi Admn.) AIR 1978 SC 179 and basically
they are - the nature and seriousness of the offence; the character of
the evidence; circumstances which are peculiar to the accused; a reasonable
possibility of the presence of the accused not being secured at the trial;
reasonable apprehension of witnesses being tampered with; the larger interest
of the public or the State and other similar factors which may be relevant
in the facts and circumstances of the case. The case of Kalyan Chandra
Sarkar (supra) was decided on its own peculiar facts where the accused
had made 7 applications for bail before the High Court, all of which were
rejected except the 5th one which order was also set aside in appeal before
this Court. The 8th bail application of the accused was granted by the
High Court which order was subject matter of challenge before this Court.
The observations made therein cannot have general application so as to
apply in every case including the present one wherein the Court is hearing
the matter for the first time.
16. For the reasons
discussed above, we are of the opinion that prima facie a strong case has
been made out for grant of bail to the petitioner. The appeal is accordingly
allowed and the impugned order of the High Court is set aside. The petitioner
shall be released on bail on his furnishing a personal bond and two sureties
to the satisfaction of the Chief Judicial Magistrate, Chengleput. Shri
Nariman has made a very fair statement that till the investigation is under
progress, the petitioner shall not visit the Mutt premises. We accordingly
direct that till the submission of the charge sheet in Court, the petitioner
shall not visit the Mutt premises. He shall also surrender his passport
before the CJM.
17. Before parting,
we would like to place it on record by way of abundant caution that whatever
has been stated hereinabove in this order has been so said only for the
purpose of disposing of the prayer for bail made by the petitioner. Nothing
contained in this order shall be construed as expression of a final opinion
on any of the issues of fact or law arising for decision in the case which
shall naturally have to be done by the trial court seized of the trial.
We have only formed a prima facie opinion and placed the same on record
in fairness to the learned senior counsel for the State who raised those
pleas and vehemently urged the same by citing various provisions of law
and the authorities.
